Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-13
TIE SUPREME COURT.

r E. Gaines, associate Justices; @. S. Morse,
clerk; NJ. M. johnson, bsilif.
William Esser VS.. julius Winkelmeyer
Brewing Association, from Bexar;
opinion by Willie, G. j. This was suit
by appellee for goods sold and delivered.
Appellant set up failure on part OF ap-
pellee to perform his contract; there was
a Judgment for appellee and an appeal
by appellant; the only error relates to
the refusal of the court to grant new
trial. The grounds OF the motion are
that he was taken sick and unable to be
st the trial and was prevented from show
ing by his evidence and others that ne
was not indebted to appellee.
He also presented certificate
of his physician as to the state
of his health, setting forth
that he was too unWell to leave home,
etc. The physicians certificate was dated
two days after the trial, and has no bear
ing on the case. The appellant affidavit
is wholly insufficient, because l. 1t does
not show why his attorney did not move
for continuance; 2. 1t does not show
that his presence was necessary and
leaves the inference that his defense could
be proved by others in his absence. 3. 1t
does not set forth the defense he
expected to make so that the court could
tell whether it would have availed him or
not. There is Il suggestion of delay in
the Case, and the Judgment is affirmed
with 10 per cent. damages.
Geo. B. Anderson eft al. VS.. n. 2. Sims,
from Ellis; opinion by S5ayton, A. j..
The petition in this case alleges that An
derson, October 6, 1888, executed his
note to appellant for $1378.58, and in
dOrsed to him also 8 note for $500, eX-
ecuted by appellants Blesslngame and
Farrar. This last note was said to have
been executed for the accommodation OF
Anderson, who, TO secure Farrar from
loss on the note Endorsed to him note
executed to Anderson for $1,000, by R. B.
Jordan on November 26, 1881, and due
twelve months after date. All the persons
executing above notes were made de-
PENDANTS; ali the defendants answered by
general demurrer and general denial and
defendant Jordan admitting the execution
of the note to Anderson by himself al
legged that the purpose alleged IN the Pc
tition, but that he and Anderson pro-
cured the signature of Farrar to a note
payable to the order OF Pat
rick, Mcmillan & Co., for
the SUM of $1,000, due on Or before
June l, 1882, and that u secure Farrar
against any loss the note he had executed
to Anderson was deposited with him. He
further alleged that the Patrick, McMil-
Ian & Co note was paid and that after
wards he had satisfied the note executed
to Anderson. and it went into the hands Of
appellees without any agreement to that
effect. DemgTrers to this answer were
sustained and Judgment was recovered
against all of the defendants. 1t will not
be necessary TO consider all the questions
raised. To render Jordan liable it must
be shown that Farrar held the note as q
security on account Ofsindorsing for An
deTsOn, to Sims. If he held the
note because of the Patrick
MCMillen note, he could not confer on
Sims 2 right TO enforce the payment Of
it. There is no pretense that Sims be-
came the holder OF the Jordan note in
such manner as TO enforce it as an in
dependent matter between Jordan and
himself. It was necessary to show
that Sims was entitled to enforce the pay
ment Of the note due to him by Anderson
through Jordan, or there would be g
misioinder of actions. Jordan set up a
complete defence and the court erred in
sustaining the demurrer. Appellee's
counsel suggest that if they can't recover
against jordan they will dismiss as TO him,
but the Judgment is sn entirety, and it is
not proper case to affirm as to some
and reverse as to one. The Judgment is
reversed anG the cause Temanded.
WIR. Baker VS.. Thomas Maloney ct
a., from ShaCkelfOrd: opinion by Stay
ton, Al. The real question in this case
was as to the identity of the John Wilson,
10 whom the certificate for the land in
controversy was issued. A conditional
certificate, issued from the board of land
commissioners of Harris county March z,
1889, was of third-Class and numbered Z
On this conditional, an unconditional
certificate No. 1140, issued, by virtue OF
which the landiwas granted. Another con-
ditiOnal certificate, No. 679, was issued
by the same board December 8, 1889, to 8
John Wilson, calling for $50 acres as did
the other; the unconditional certificate on
this was No. $50. Appellant claims to
have purchased the certificate at an sd
ministratOr's sale on the estate of John
Wilson in 1852. Appellee Maloney
claimed under a conveyance made by
John Wilson and his children, January
-, 1884. On the trial it was proved that
John Wilson, who made the deed, was the
grantee of conditional certificate No. z
and came TO Texas in the latter part Of
1886 or the first part of 1887, and the GER
tificate remained in his hands until 1867
when he sent it to G. r. Johns & Co., Aus
tin, who testified to receiving it. Appel
liant objected to the evidence to show tina
John Wilson was the one to whom
the certificate was issued because, as tht
certificate was third-class and for 32C
acres, it was conclusive of the fact tina
the John Wilson to whom it was ISSUED
came to Texas after October l, 1887
This proposition can't be maintained
for while the determination OF the sew
eral board of land commissioners il
conclusive of the rights of g person tt
whom such a certificate is issued, bu
not to the fact that he was not entitled Il
more land. Because John Wilson go
only $50 acres 1t does not prove that h
could receive no more thai
j. that number The certifcat
vast conclusive that the Gpplican
proved his qualifications which entitle
hin:to the certificate, but certainly coult
not prove that he was not entitled to tn
greater right. The burden of proof is o.
%I,,&A l,o T,H